Adverse possession where part of the land is not in constant, active use

Cornhill Enterprises Ltd v 梁振生 ([2013] HKEC 1796, CFI) ‘is a classic example of how absent neglectful landowners create problems for themselves in the face of an acquisitive population seeking in the time-honoured fashion to scrape a living from apparently derelict land by traditional or progressively modern methods.’ (Deputy Judge Seagrott at [2]).

The plaintiffs had been the formal owners of certain plots of land for several decades but there was no sign at the property to indicate their ownership ([5]). The plots of land had been occupied by the second defendant and his family for over seventy years ([70]). There was ample evidence of their animus possidendi. They had, for example, seen off an attempt by a third party to take over possession of the land ([66]). There was also a lot of evidence to show the family’s attempts to cultivate and improve the land and then to adapt its use to changing circumstances. This all went to show that the family had the necessary animus possidendi ([67]).

Some portions of the land were not intensively cultivated in later years but they had not been completely abandoned and changes in the uses to which the land could effectively be put explained this lesser degree of attention ([68]).

The adverse possession claim succeeded.

Michael Lower

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